With the House select committee investigating the Jan. 6 attack on the Capitol more than halfway through its seven public hearings, the big question now looming over the proceedings is whether or not they will be a success — and what success will look like.
The comparison most readily made when discussing successful congressional committee hearings is that of the Senate Watergate Committee. The investigation into Richard Nixon’s successful efforts to abuse the executive branch to help his reelection campaign carried on the three major television stations and helped turn public opinion against Nixon.
Across the country, Americans watched together as former White House counsel John Dean revealed the existence of the Oval Office taping system. And again saw corroborating testimony by Alexander Butterfield, the former White House aide who installed the system. The “smoking gun” tapes ultimately proved Nixon’s illegal machinations and led to his resignation ahead of imminent impeachment.
But the Jan. 6 committee is not investigating a sitting president; former President Donald Trump left office on Jan. 20, 2021. The hearings also are not a precursor to an impeachment proceeding, since the House already impeached Trump weeks after the insurrection for directing the attack on the Capitol and attempting to steal the 2020 election.
So, what does success look like exactly?
The committee’s success should be judged within “four boxes,” Norm Eisen, a former counsel on the House Judiciary Committee’s first impeachment of Trump and White House ethics czar under President Barack Obama, told HuffPost. Those four boxes are: “the cable box,” “the legislative tally box,” “the ballot box” and “the jury box.”
The “cable box” corresponds with the committee’s ability to affect public opinion in telling the story of Trump’s plot to steal the election before and on Jan. 6 and the ongoing plot to steal the next election. The “legislative tally box” would be filled with any legislation enacted in response to the committee’s findings to prevent future election theft attempts. The “ballot box” judges whether the committee’s findings can create a bipartisan referendum against those who sought to steal the 2020 election in November or in 2024. And the “jury box” will judge whether the committee’s work feeds into ongoing investigations by the Department of Justice and the Fulton County, Georgia, District Attorney’s Office.
Public Opinion
What people remember about the Watergate hearings is that the revelations that ultimately led to the disclosure of the “smoking gun” tape had a sizable impact on public opinion. The case of Jan. 6 is a little bit more complicated, in that, the effort to overturn the election was largely done in plain sight.
What the Jan. 6 committee needs to do is not necessarily find a “smoking gun,” but establish a shared understanding of what happened that day and in the lead up to it and the danger it posed to the continuation of American democracy.
“One critical way of conceiving success for the committee’s work might be the degree to which they are able to help generate a more shared, complete, truthful understanding among the public about the conspiracy to overturn the election,” Grant Tudor, policy advocate at the nonprofit Protect Democracy, said.
This may not only be the hardest thing to accomplish, but also, as Tudor says, “the fuzziest and squishiest and the least easy to assess” of the measures of success for the committee’s work.
The challenge for the committee is that American politics are at a high point of partisan polarization, a quite different dynamic than faced by the Watergate committee in the 1970s when partisan polarization, particularly in Congress, was at a low point. This is particularly true for the Republican Party. Polls consistently show that most Republicans believe Trump’s lies about election fraud, with around 50% of Republicans see the attack on the Capitol in positive terms like the act of “patriotism” or “defending freedom.”
Despite this, there still remains a “a persuadable part of the electorate,” according to Tudor. Polls have shown that around one-fifth of respondents were unsure about some of the basic facts surrounding the Jan. 6 attack, including that it was part of a broader conspiracy to overturn the election.
“That shared understanding doesn’t need to be unanimous,” said Daniel Weiner, director of the elections and government program at the Brennan Center, a liberal law and policy nonprofit. “It needs to be a shared understanding of a governing majority.”
The key then is to establish the connection between Trump’s effort to abuse the rules around the counting of Electoral College votes within Congress in order to steal the election and the insurrectionary violence he directed at the Capitol at the very moment lawmakers were counting those votes.
The committee is attempting to do this almost exclusively through the testimony of Republicans who served in Trump’s administration or who advised key players from outside and evidence collected from those around Trump who sought to overturn the election results.
“I’ve been impressed so far at the step-by-step exposure of what happened on January 6 and leading up to it ― for the most part, from the testimony of Trump administration insiders acknowledging that it was dangerous and criminal,” Joanne Freeman, a historian at Yale University whose latest book “The Field of Blood: Violence in Congress and the Road to Civil War” examined political violence in Congress in the mid-19th century, said in an email.
The hearings have so far shown Trump administration veterans revealing that Trump and his inner circle were repeatedly told that their scheme to steal the election was illegal and that some, including conservative lawyer John Eastman, even conceded that fact at the time. The timeline the committee has presented also links the effort to pressure Vice President Mike Pence to not count certain states’ Electoral College votes to the “wild” protests that eventually resulted in the breach of the Capitol.
But just as important as presenting a timeline linking the Electoral College plot to the riot on Jan. 6 is to show that the threat has not passed.
“The insurrection has not ended,” Eisen said. “The ‘Big Lie’ is still burning across the country.”
To that end, former judge Michael Luttig, a conservative luminary who was once shortlisted for a Supreme Court seat, clerked for the late Justice Antonin Scalia and served as a mentor to Sen. Ted Cruz (R-Texas), plainly stated in testimony given on Jun. 16 that, “Trump and his allies and supporters are a clear and present danger to American democracy.”
“To this very day, the former president and his allies and supporters pledge that if the former president or his anointed successor as the Republican Party presidential candidate were to lose [in 2024], that they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020,” Luttig said.
Legislation
Luttig’s comments naturally flow into the next measure of success for the committee, and that is whether or not legislation is passed based on its findings. This “is the most important” metric of success, Rick Hasen, an election law expert at UCLA School of Law, told HuffPost.
“[T]here’s no reason to think that the danger of stolen elections has passed, and next time those who attempt it might not be bunglers like Trump and his co-conspirators,” Hasen said.
To prevent a repeat of the Jan. 6 plot, Congress would, at the very least, need to reform the Electoral Count Act, which governs how Congress counts Electoral College votes, to make clear that states cannot submit competing slates of electors to Congress that are not based on the popular vote totals of their elections, clarify that the vice president must open and count only valid Electoral College votes and raise the threshold for lawmakers challenging a state’s Electoral College votes, among other things.
A bipartisan group of senators has been working on such legislation since January and such reforms have received endorsement from the conservative Wall Street Journal Editorial Board. But, so far, no details on the legislation have been released.
Tim Roemer, former Democratic congressman from Indiana and member of the 9/11 Commission, in calling for Electoral Count Act reform, said that the committee must not just put forward policy recommendations, but also continue to push for them after its public work is done.
“Follow up on your recommendations,” Roemer said. “And tenaciously and determinedly make sure they’re passed into law. Your work’s not done when you make the recommendations. You’ve got to see them implemented into law.”
At the first meeting of the 9/11 Commission, the five Democrats and five Republicans discussed how they would work alongside the 9/11 families to enact any recommendations they ultimately came up with.
Whatever policy recommendations the committee does ultimately make, if it makes any, should be unanimous, like the 9/11 Commission’s were, Roemer said.
“Most blue ribbon commissions, their recommendations end up in some warehouse in some nondescript building in Maryland buried under a lot of extraneous bureaucratic paperwork,” Roemer said. “They need to make sure this one stands out.”
Tudor, however, worries that putting the onus on the committee to pass legislation based on its recommendations “risks creating an unreasonably high expectation for the committee,” particularly since Congress “as it’s currently designed, [makes it] difficult if not impossible to pass meaningful reforms, especially at the scale that would probably be required to meaningfully guard against this type of thing happening again.”
Elections
“The committee needs to, without ever doing over partisan electioneering, make clear that November is a bipartisan referendum,” Eisen said. “Are we going to have democracy in our country or Trumpery?”
Eisen was the lone voice among those HuffPost talked to to list electoral outcomes as a measure of success for the committee. Others were explicit in stating the opposite.
“I do not think the hearings should be measured by whether Democrats keep control of Congress,” Weiner said.
But electoral outcomes are a fair measure of success. The reason for this circles back to what the retired conservative judge Luttig said on Thursday. Trump and many in the Republican Party intend on running the exact same playbook to steal the election in 2024 if they do not win an Electoral College majority. In fact, numerous crucial elections for positions that will have power over the certification of elections in key swing states feature Republican candidates who are expressly running on a platform of not certifying election wins by Democrats.
Some of these GOP candidates, like Doug Mastriano, the Republican gubernatorial nominee in Pennsylvania, and Ryan Kelly, the poll leader for the Republican gubernatorial nomination in Michigan, were at the Capitol on Jan. 6. Kelly was indicted and arrested on Jun. 9 for entering the Capitol grounds, which he saw as a boon for his campaign.
This measure of success connects to the committee’s success at affecting public opinion. The party of the incumbent president almost always loses congressional seats in a midterm election. The number of seats are usually tied to the incumbent’s approval ratings, which, in turn, are tied to economic concerns like the Gross Domestic Product growth rate and gas prices. And there are no shortage of economic concerns for voters, from inflation to supply chain shortages to a possible Federal Reserve induced recession. Most polls show economic concerns the top issue for Americans in 2022.
“If we lose this democracy,” Roemer said, explaining the argument that needs to be made to the public. “If the precedent becomes, you lose an election you can assault the government or take power in your own hands, that’s the end of our great experiment that our founder started 250 years ago. And we don’t get answers or solutions, whether it’s from the government or the private sector, for these other issues we care so much about.”
Prosecution
Finally, the committee’s investigation could feed into investigations already under way in the Department of Justice and in Fulton County District Attorney Fani Willis’ office.
Committee Chairman Bennie Thompson (D-Miss.) said that the committee would not be making a criminal referral to the Department of Justice. Other committee members, including Reps. Liz Cheney (R-Wyo.) and Adam Schiff (D-Calif.), pushed back on that suggestion by saying the committee had not decided on that yet.
Whether or not the committee makes an official referral to the Justice Department, it has been fairly explicit in outlining how Trump’s actions and those of his inner circle were illegal — and that they knew it was illegal.
This outline, presented at the committee’s first public hearing by Cheney, details how Trump pressured party, state and federal officials to corruptly help him overturn the election results. As he did this, his own Department of Justice and lawyers both opposed and in support of his plot to overturn the election told him that what he was doing was illegal. He then rallied a mob of supporters on the Mall and directed them at the Capitol. When the mob breached the Capitol, he did not lift a finger to stop them.
The committee has backed up this outline of criminality with evidence from key players and testimony exclusively from Republicans who served in the Trump administration or Republicans who played some role around the events of Jan. 6.
“The type of fact finding that this body is doing is quite literally, in real time, collecting precious evidence and collating that evidence and systematizing that evidence in a way that will very likely be helpful for criminal prosecutions and investigations,” Tudor said.
And it does appear that the Department of Justice wants the evidence the committee has collected. In a Jun. 15 letter to the committee, the department complained that the committee has not shared witness testimony to aid in its criminal investigations and prosecutions, specifically the prosecution of leaders of the Proud Boys, a pro-Trump street fighting group.
The Justice Department is not the only legal entity investigating Trump’s potential illegal activity related to Jan. 6. Fulton County DA Willis has empaneled a grand jury investigating Trump’s effort to pressure Secretary of State Brad Raffensperger to “find” enough votes to flip the state’s election results. Raffensperger is slated to testify publicly before the committee on Jun. 21.
In The Long Run
Even aside from these four areas, some experts who spoke with HuffPost said the committee is already a success simply through the work it has already done.
“In holding hearings, the House is enacting the basic fact of accountability and upholding the idea and reality of the rule of law,” Freeman said over email. “At a time when faith in the national government is slipping, the hearings are also showing Congress in action as a functioning institution, holding itself accountable for its responsibilities as well. Regardless of the final outcome, this kind of public, visible accountability is vitally important.”
This work creates a public record of the first time there was not a peaceful transfer of power since the outbreak of the Civil War. It provides officially gathered evidence that Jan. 6 was not simply the attack on the Capitol, but a broad, if also insanely stupid, conspiracy led by the sitting president to overthrow the elected government of the United States.
“In practical terms, that kind of fact-finding lays the ground for truth-telling that might not break through tomorrow, but keeps open the door for truth-telling efforts in the future — perhaps a long time from now,” Tudor said.
The success of the committee hangs over what “a long time from now” looks like. Will the U.S. survive a second attempt to steal an election in 2024? And will the country be recognizable if it doesn’t?